Labor: Pitfalls and policies around social media and employment law decisions

Recent months have seen a flurry of commentary and government activity when it comes to the intersection between an employee’s social media activity and a company’s employment-related decisions. In October 2010, that intersection was in the spotlight for the first time, as the National Labor Relations Board (NLRB) stood as crossing guard to regulate employer decisions and conduct in the social media context. An administrative complaint was filed at that time by the NLRB after a Connecticut ambulance company terminated the employment of an employee who had posted negative comments about a supervisor on Facebook. That case settled a few months later, but the floodgates were open.

So what are the issues? In the movie The Social Network, Justin Timberlake’s character aptly said: “We used to live on farms, then in cities. Now we live on the Internet.” That is the new reality today, and the impact is felt in today’s workplace. Statistics show that employers are monitoring and relying on social media use by their employees (potential and current) in increasing numbers.

So the first issue is whether an employer can make an employment-related decision, such as termination, based on an employee’s statement or conduct through social media. While there are several legal issues to consider, from the NLRB’s standpoint, the takeaway is that employers should not simply be “trigger happy” when it comes to making personnel decisions in this area. Instead, your company should analyze the particular fact setting by considering the following four questions.

Making Decisions

First, is the employee’s social media posting or other activity “concerted” activity? The NLRB has determined that employee activity is “concerted” if it is engaged in “with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

Second, is the concerted activity “protected” concerted activity?Employee activity is “protected” if it generally refers to or implicates the terms and conditions of the workplace. The NLRB seems to have adopted a broad view of the types of postings and discussions that implicate working conditions, requiring one to analyze both the social media statements themselves, as well as the context in which such statements were made.

If the answers to questions one and two are “yes,” the third question asks whether the employee nevertheless “crossed the line” by being so disloyal, and made a statement that was so reckless or maliciously untrue, as to lose the protection of the law. There is a high threshold for that determination, however, and employee conduct that is objectively innocuous and not overtly opprobrious will generally not result in a finding that the employee has lost the Act’s protection.

Finally, if the employee has not lost the protection of the law, the final question asks whether the employer can show that the employment decision made or adverse action taken is based on a legitimate business reason other than the employee’s protected concerted activity. In other words, was there a causal link between the social media activity and the decision or action.

General Policies

The second issue at play in this area involves, not decisions being made about a particular employee, but the company’s general workplace policies. The NLRB has also been looking at social media policies created by employers to determine whether the policies are overbroad and impermissibly vague, such that the policy tends to chill employees in the exercise of their rights under the law. This issue rests on whether you have articulated protectable business interests in a narrowly tailored way.

Examples of impermissibly overbroad provisions, according to the NLRB:

Prohibiting the release of “confidential information” or “non-public company information” generally, or unless there is a “need to know” to do the job

Requiring posts to be “completely accurate and not misleading”

Requiring that an employee secure permission from the employer as a condition to engaging in what might be considered “protected activity”

Prohibiting generally the posting of photos, music, videos, quotes and personal information of others’ without obtaining the owner’s permission, and from using the employer’s logo or trademarks even for noncommercial use

Prohibiting “disparaging” or “defamatory” remarks, as well as “offensive, demeaning, abusive or inappropriate remarks” without further edification

Requiring that employees think carefully about friending even their co-workers